Abbasid, Inc. v. Bank of America, N.A.

Filing

UNPUBLISHED OPINION FILED. [09-40843 Affirmed ] Judge: EMG , Judge: FPB , Judge: MAC Mandate pull date is 10/05/2010 [09-40843]

Abbasid, Inc. v. Bank of America, N.A.

Doc. 0

Case: 09-40843

Document: 00511233473

Page: 1

Date Filed: 09/14/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40843 September 14, 2010 Lyle W. Cayce Clerk A B B A S I D , INC., doing business as Azhar's Oriental Rugs, P la in t if f -A p p e lla n t v. B A N K OF AMERICA, N.A. D e fe n d a n t -A p p e lle e

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 7:08-cv-00162

B e fo r e GARZA and BENAVIDES, Circuit Judges, and CRONE, District Judge.* P E R CURIAM:* * A p p e lla n t Abbasid, Inc. ("Abbasid") appeals the district court's order d e n y in g its motion to compel arbitration pursuant to an arbitration agreement b e tw e e n Abbasid and Appellee Bank of America, N.A. ("BOA"). The decision of t h e district court is affirmed for the following reasons: A b b a s id initiated litigation against BOA in state court for breach of c o n t r a c t, fraud, negligence, and violations of the Uniform Commercial Code, a lle g in g that BOA wrongfully processed and paid unauthorized checks and debit

*

District Judge for the Eastern District of Texas, sitting by designation.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

**

Dockets.Justia.com

Case: 09-40843

Document: 00511233473

Page: 2

Date Filed: 09/14/2010

No. 09-40843 c a r d charges on its account. BOA removed the action to federal district court, a n d Abbasid allowed the case to progress in that forum for over one year without in v o k in g the arbitration agreement. During this time, Abbasid engaged in s ig n ific a n t pre-trial activity, including filing a motion to remand, organizing a c a s e management plan, serving disclosures, and engaging in discovery and m o t io n s practice. BOA expended time and resources removing the case to

fe d e r a l court, defending against the motion to remand, propounding and r e s p o n d in g to discovery requests, and filing and defending against motions to c o m p e l. Furthermore, the timing of Abbasid's motion to compel arbitration v ir t u a lly assured that the district court would not rule on the motion before s u ffic ie n t discovery had been conducted to allow BOA to file a motion for s u m m a r y judgment. T h e district court did not err in determining that Abbasid substantially in v o k e d the judicial process by filing suit against BOA and proceeding with lit ig a t io n for over one year without objection. The court, likewise, did not err in d e t e r m in in g that Abbasid's actions prejudiced BOA in terms of delay, expense, a n d legal position. Under these circumstances, the district court correctly

d e t e r m in e d that Abbasid waived its right to arbitrate its claims. Accordingly, t h e district court's order denying Abbasid's motion to compel is AFFIRMED.

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